Judge: Stephen P. Pfahler, Case: 22STCV13271, Date: 2022-09-29 Tentative Ruling
Case Number: 22STCV13271 Hearing Date: September 29, 2022 Dept: F49
Dept.
F-49
Date:
9-29-22 a/f 10-24-22
Case
#22STCV13271
Trial
Date: 4-10-23
PREFFERENCE
MOVING
PARTY: Plaintiffs, Garry Lee Klink
RESPONDING PARTY: Unopposed/Defendants, Quest
Global, et al.
RELIEF
REQUESTED
Motion
for Trial Preference
SUMMARY
OF ACTION
On
May 19, 2020, plaintiff Garry Lee Klink, a pedestrian, was allegedly struck in
a marked crosswalk by a vehicle operated by defendant Carol Gordon, and owned
by defendant Quest Global.
On
April 21, 2022, Klink filed a complaint for negligence/negligence per se. On
July 8, 2022, the action was transferred from Department 31 to Department 47.
On July 11, 2022, the case was assigned from Department 47 to Department 49
following a 170.6 challenge to Department 47.
The
action was transferred from the Personal Injury court to Department 49 on
February 19, 2020. On September 16, 2020, the court overruled the demurrer to
the demurer to the negligent infliction of emotion distress causes of action.
RULING: Granted.
Plaintiff
Garry Lee Klink moves for trial preference on grounds that Plaintiff is 81
years old, and Plaintiff’s current health condition supports trial preference.
Code of Civil Procedure section 36 subdivision (a)
states in relevant part: “A party to a civil action who is over 70
years of age may petition the court for a preference, which the court shall
grant if the court makes both of the following findings: (1) The party has
a substantial interest in the action as a whole. (2) The health of the
party is such that a preference is necessary to prevent prejudicing the party’s
interest in the litigation.”
Defendants, Quest
Global, et al. in response requests the court set the motion nine months from
the hearing date. The court electronic filing system shows no reply at the time
of the tentative ruling publication cutoff.
Plaintiff supports the motion with a declaration from counsel
that Plaintiff is 81 years old, and suffering from medical conditions beyond
the injuries as a result of the accident. While the declaration falls short of
a showing that Plaintiff’s life expectancy falls to six months or less, the
court, in its discretion, finds the interests of justice support the
advancement of the trial given the age, preexisting medical conditions, and
injuries to Plaintiff.
The trial date is currently set for April 10, 2023—193 days
or six months and 12 days from the date of the motion. “Upon the granting of such a motion for preference,
the court shall set the matter for trial not more than 120 days from that date
and there shall be no continuance beyond 120 days from the granting of the
motion for preference except for physical disability of a party or a party’s
attorney, or upon a showing of good cause stated in the record. Any continuance
shall be for no more than 15 days and no more than one continuance for physical
disability may be granted to any party.” (Code Civ. Proc., § 36, subd. (f).)
Subtracting 73 days from the current trial date places the trial date on Friday
January 27, 2023. Given the court sets it’s trials for Mondays, the trial date
is therefore set for a starting date no later than January 23, 2023, with the
reservation of a 15 days continuance, effectively setting a new date for Monday
February 6, 2023.
The court also acknowledges Defendants’ right to a motion
for summary judgment. (See Polibrid Coatings, Inc. v.
Superior Court (2003) 112 Cal.App.4th 920, 923; Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998)
66 Cal.App.4th 257, 262.) The court orders the parties to cooperate in
the expedited setting of the depositions of witnesses, experts and parties.
Depositions can occur via video or telephonic platform, due to Covid concerns
and/or in the interests of efficiently expediting discovery should the
individual defendant require remote access from an out of state location, due
to work schedules.
Defendant to give notice.